OSHA’s proposed injury reporting rule set to cause big changes for smaller companies
Big changes are just around the corner for smaller companies, with OSHA’s proposed final rule to restore and expand upon Obama-era injury reporting requirements currently set to publish in December 2022.

The draft version of the rule would see reporting requirements expand for high-hazard employers with at least 100 employees having to submit injury and illness forms electronically to the agency, down from the current 250 employees.

Employers with 20 to 249 employees who are classified in specific industries with historically high rates of occupational injuries and illnesses won’t see any significant changes to how they report.

Casting the compliance net farther

Currently, the OSHA Form 300 injury and illness records require employers in hazardous industries, such as construction, with at least 250 employees to submit their information online. Dropping that threshold to 100 employees will cast OSHA’s compliance net even further.

For example, the U.S. Bureau of Labor Statistics reports that about 150,000 construction workers experience work-related injuries per year. Now consider that under the new rule the threshold drop from 250 to 100 would add more than 9,300 construction firms into the agency’s new electronic recordkeeping requirement, according to Courtney Malveaux, an attorney with law firm Jackson Lewis.

Why OSHA wants more data from more employers

OSHA says that expanding the reporting mandate will hopefully provide the agency with more establishment- and case-specific data that will help it focus its compliance efforts.

For example, OSHA says that with the additional data it could:

  • send hazard-specific educational materials to employers who report high rates of injuries or illnesses related to those hazards
  • use the information to identify emerging hazards, support an agency response, and reach out to employers whose workplaces might include those hazards
  • focus its Emphasis Program inspections on establishments with specific hazards, such as trench and excavation collapses
  • refer employers who report certain types of injuries and illnesses to OSHA’s free on-site consultation program, and
  • add specific hazards or types of injury or illness to the Site Specific Targeting program, which currently is based on establishments’ overall injury and illness rates.

The final rule in time for Christmas 2022?

This reporting rule was introduced in 2016 under the Obama administration, but it was modified by the Trump administration in 2018 to ease concerns that OSHA would use these reports to shame employers by publishing the information on the agency’s website. That’s what led to the requirement for electronic submission of summary data only.
The Biden administration not only wants to bring the original rule back, it also wants to expand the number of employers it covers, leading to the threshold drop from 250 employees to 100 employees.

Comments on the proposed rule were due by May 25, 2022, but that was extended to June 30, 2022. OSHA’s Spring 2022 Regulatory Agenda lists the publication of a final rule at some point in December 2022.

Identification, more detailed data required

The final rule would not only expand on the number of employers covered, it would also reinstate requirements to have employers identify themselves on reports and provide more detailed Form 300 injury and illness data.

OSHA states in the proposed rule’s Federal Registry entry that it “intends to post the data from the proposed annual electronic submission requirement on a public website after identifying and removing information that reasonably identifies individuals directly, such as individuals’ names and contact information.”

And don’t doubt that OSHA is determined to get its injury and illness data as the agency announced in April 2022 that it started an enforcement program targeting employers who failed to submit their Form 300A data.

One of the companies that has come under fire from OSHA regarding its injury reporting is Amazon. CNBC reported that OSHA inspectors have zeroed in on Amazon’s injury and illness recordkeeping, among other things, as part of its joint investigation with the U.S. Attorney’s Office for the Southern District of New York into several of the retail giant’s warehouses.

Current process to submit injury/illness data

Currently, OSHA begins collecting injury and illness data for the previous calendar year in early January, with the electronic versions of Form 300 due in early March.

Employers have three options to submit the data on OSHA’s website:

  • enter the data into a webform
  • upload a CSV file to process single or multiple facilities at the same time, or
  • transmit an API file.

If data is submitted before the deadline, and a new recordable case occurs, edits can be made to the submitted form by:

  • logging into the Injury Tracking Application (ITA) and choose View Establishment List
  • clicking on the establishment name link of the facility you want to edit
  • clicking on Edit 300A Summary
  • making your changes and saving them, and
  • re-submitting the data.

If, for some reason, an employer misses the deadline, OSHA says the ITA will accept Form 300A data through the end of the calendar year, and the employer must still electronically submit that data if required by the agency.